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Chandra v Ward [2005] FJHC 298; HBC0153.2005 (22 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0153 OF 2005

BETWEEN:

YOGESH CHANDRA aka NAVIN MORARJI
(father’s name Maroarji Kalidas) of Kennedy Avenue, Nadi, Businessman.
PLAINTIFF

AND:

STEPHEN PATRICK WARD
of 17 Rastrick Street, Christchurch, New Zealand, Businessman.

Messrs Mishra Prakash & Associates for the Plaintiff
Messrs Michell Keil & Associates for the Defendant (City Agents Krishna & Co).

Date of Hearing: 15 November 2005
Date of Ruling: 22 November 2005

INTERIM INTERLOCUTORY RULING OF FINNIGAN J

The Plaintiff seeks leave to appeal against my interlocutory ruling refusing interim relief pending hearing of a substantive claim.

The substantive claim is endorsed on the Writ which was filed on 2 June 2005. The Plaintiff seeks specific performance of a contract for the sale and purchase of residential land at Denarau, and “further or alternatively damages for breach of contract”. That same day 2 June 2005, without a hearing, I granted ex-parte interim relief to the Plaintiff pending an inter-partes hearing about the interlocutory relief. The relief granted was extension of a caveat and an injunction against dealings with the land in question. The interim order was to expire at 4.00pm on 17 June 2005 and the parties were to appear that morning at 9.00am, so that the application for interlocutory relief would then be inter-partes.

On 17 June 2005 both parties appeared and the Plaintiff sought an early hearing of the application for Interlocutory Relief. The Defendant had filed an affidavit the previous day and the Plaintiff was given seven days to file an affidavit in answer. The parties were to appear again one week later on 24 June when a hearing date would be set. No reference was made to the interim order and it lapsed.

On 24 June 2005 both parties appeared, the Plaintiff had filed no affidavit, I excluded any further affidavit and by agreement with Counsel set a timetable for written submissions and a written ruling on the application for Interlocutory Relief. I noted that the interim orders for Interlocutory Relief had expired. Plaintiff’s Counsel made no applications.

On 5 August 2005 I delivered my interlocutory ruling and I refused Interim Relief. Specifically, I declined to re-instate the order extending the caveat which had lapsed on 17 June 2005 and I declined to make any injunctive orders preventing dealings with the land in question. I held that by application of the principles in American Cyanamid [1975] UKHL 1; (1975) AC 396 that if the Defendant proceeded to sell the land and if the Plaintiff were injured thereby then any injury or loss suffered by the Plaintiff was well within the class of case where damages are an adequate remedy.

This finding is entirely in accord with the Plaintiff’s prayer for relief, which is for specific performance of the contract and “further or alternatively, damages for breach of contract”. (I was advised at the present hearing on 15 November 2005 that the Plaintiff’s solicitors have filed a full Statement of Claim but as a result of a mistake which they had made it had never been placed on the file of this action. Whatever it may contain, I cannot take it into account. I have not seen it.)

On 31 August 2005 the Plaintiff applied for leave to appeal against my refusal to extend the caveat. He has appealed as of right against my refusal to grant an interlocutory injunction that would have had the same effect.

I am not sure about the status of the caveat. From the two affidavits that deal with it I gather it may have been cancelled by the Registrar in defiance of my earlier interim order. If however it was cancelled after the interim order expired at 4.00pm on 17 June 2005 the Registrar was free to cancel. If the caveat is validly cancelled, what power have I to restore it by way of interim relief?

My next question is, why should I? On 4 November 2005 when Counsel appeared for both parties, Plaintiff’s Counsel sought an interim stay but was not sure about what should be stayed. She then said she needed a fresh injunction. Of my own motion I made an interim order in terms of the injunctive order originally made on 2 June 2005 and this time it will last till further order of the Court. That order was sealed by the Plaintiff’s solicitors on 14 November 2005.

I now enquire why the Plaintiff wishes to pursue an appeal in respect of the caveat? I also enquire why he wishes to continue his appeal against the interlocutory refusal of the injunction when I have already made the injunction afresh on 4 November 2005.

Plaintiff’s Counsel also seeks an order that “the judgment of 5^th day of August 2005 be stayed”. Counsel should note the distinction between a judgment and an interlocutory ruling. The interlocutory ruling was a refusal to take action. There is nothing to execute. What is there to stay?

Conclusion:

Counsel were made aware at the hearing that I found this interlocutory application complex and confusing. If any reply needs to be filed to my questions above then Counsel for the Plaintiff is welcome to reply and I will consider the submissions and issue an interlocutory ruling on the application for leave to appeal against the refusal of the caveat. If however Counsel agrees that this whole exercise has been a waste of time then the Court will not be offended to discover at a later date that no further documents in this interlocutory matter have been filed.

I hope the Plaintiff’s solicitors will tidy up whatever needs to be done about a proposed Statement of Claim and that this matter can move towards the early hearing that it should have. Once again interlocutory distractions have deprived the parties of six months of progress towards resolution of their actual dispute.

This action will go into the Callover on 24 February 2006 and will be allocated a hearing date in 2006.

D.D. Finnigan
JUDGE

At Lautoka
22 November 2005